#### The People *ex rel.*Edward Walsh *v.*Charles F. MacLean *et al.*

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

1. Municipal corporations—Police—Removal.

The rule of the New York police department requiring charges to be made against any officer who, while on duty, shall draw his pistol on a citizen or use his club, except in self -defense, contemplates a case of an intentional use of the pistol.

*109
      *2.*Same.

The evidence in this case showed that relator fired his pistol in the air to attract a brother officer while watching suspicious characters. In some manner the bullet struck a citizen who was passing. *Held,*That the evidence did not show that relator intentionally pointed his pistol at any person, and was insufficient to justify his removal.

(Daniels J., dissents.)

Writ of *certiorari*to review judgment of the police commissioners.

*H. A. Gumbleton,*for relator; *John J. Delaney,*for resp’t.

Brady, J.

The specification of the alleged violation of the rules of the department was that the relator *“*drew his pistol on a citizen and fired a shot not in self-defense.” The rule is as follows:

Rule 199. Captains shall make charges against any patrolman under their command who shall, through neglect of duty, fail to discover a homicide, burglary, or serious breach of the peace committed on his beat, during his tour of duty, or who shall neglect to take proper measures to arrest any parties guilty of such offenses, or who, while on duty, shall draw his pistol on a citizen or use his club except in self-defense.

There is no evidence in the return showing a violation of this rule in any respect. It contemplates an intentional use of the pistol; in other words, that it shall be drawn upon a citizen intentionally, and not in self-defense. The circumstances under which the pistol was drawn are detailed by the relator, and by him only. He did not draw it upon Mr. Coleman, the injured man, or upon any one. He did not see Coleman until after the shot was fired. He fired to attract a brother officer, while watching suspicious characters, and therefore in performance of one of his duties. He fired it in the air, and this means, in accordance with the popular, or general understanding of that phrase, that he held his pistol upward, and it was that use of it which resulted in the accident to Mr. Coleman, which was, indeed, an accident and wholly unintentional. The ball from the pistol no doubt struck some part of the structure of the elevated railway and ricocheted or deflected and in consequence struck Coleman. This would and should explain the occurrence. The history of accidents and, indeed, of wars show many injuries arising from the deflection suggested, which it might be interesting to embrace here by way of illustration, but it is not necessary, and therefore may, and perhaps should be omitted. However this may be regarded from a scientific standpoint the fact still remains that the relator did not intentionally, or otherwise, point his pistol at any person. His offense, if any, was a careless use of his weapon, the possible consequences of which he did not foresee.

The evidence being insufficient either in fact or in its tending to show the alleged violation of duty, we have the power to correct the error committed in removing the relator. *People ex rel. Hart*v. *Fire Commissioners,*82 N. Y., 858. For, these reasons the proceedings of the commissioners should be reversed and the relator restored. Ordered accordingly.

Van Brunt, P. J., concurs.

*110Daniels, J.

(dissenting).—The charge made against the relator was that on the 20th of October he drew his .pistol on a citizen and fired a shot, not in self-defense, but in violation of rule 199. And it was a violation of that rule as contained in the case for a member of the force while on duty to draw his pistol not in self- . defense on a citizen. The relator by his counsel admitted that be shot John Coleman in the abdomen on the morning of the 20th of October, 1889, and the other testimony which was given proved the fact to be that Coleman was found near a pillar of the elevated railroad, and stated that he had been shot, and was thereupon taken to the station-house, and finally sent to the hospital, where he was at the time of the trial before the commissioners.

In exoneration of the relator, it was stated that he was following and watching two other persons who had aroused his suspicions, and discharged his pistol in the air to attract the attention of other officers and to bring them to his assistance. Ho other pistol shot was heard at or near the time when Coleman received this wound, and no pretense was made that it had been received in any other manner than from the pistol in the hand of the relator, and whether it had been discharged in the manner mentioned by him was a question which addressed itself to the consideration and decision of the commissioners, and as to that fact their decision wás adverse to him, and it may very well have been so. For if the relator had merely discharged the pistol in the air to attract attention, as it was stated he did by himself, it is not reasonable to suppose that the bullet would have taken effect upon the person , of Coleman, as it appears to have done. The rational and probable conclusion is that the pistol was pointed at Coleman, and discharged when pointed in that manner. For in no other way does it appear that the ball could have taken the effect upon his person which it did.

The probabilities of the case all point to this use of the weapon by the relator, and not to that mentioned by himself, as a witness on the hearing. And with this probability before them, the commissioners were justified in concluding that the shot had. not been made in the air, as the relator stated it was, but that it was the result of pointing the pistol at the person who was struck by the bullet.

The evidence in this manner disclosed supported the conclu-. sion reached by the commissioners, and their decision should be affirmed.

Proceedings of commissioners reversed and the relator restored.